Most people know that it is unlawful for an employer to discriminate against an employee on account of the employee’s disability. Many people even know that to do so can be a violation of the ADA – the Americans with Disabilities Act. But few people actually know how the ADA actually works – who is covered by the law, what kinds of disabilities are protected, and what protections the ADA provides. This overview is intended to provide some general guidance to help employers and employees understand whether the ADA may apply to disability issues in the Maryland workplace
It comes as a surprise to some people that the ADA does not apply to all employers. But it is true – the ADA only applies to employers with 15 or more employees. There is a possibility that small companies that are extensions of a larger organization, like a local chapter of the Red Cross, may be required to comply with the ADA. For now, however, that is still an open question. See Reynolds v. American National Red Cross, 701 F.3d 143 (2012).
The primary focus of the ADA, of course, is to protect from discrimination employees who currently have a disability, which is “a physical or mental impairment that substantially limits one or more major life activities.” In addition, however, the ADA also covers 2 other categories of employees who are not currently disabled: (1) employees who have a record of a disability; and (2) employees who are “regarded as” having a disability. For example, consider an employee who develops partial paralysis from a gunshot wound. If the employee regains his mobility, but an employer refuses to hire him because of the applicant’s record of partial paralysis, that may constitute unlawful discrimination. An example of being “regarded as” having a disability could involve an employee who sustains an ankle injury. If the employer mistakenly believes that the injury rendered the employee completely unable to perform his job and fires him, the employer could be liable under the ADA for “regarding” the employee as having a disability. Interestingly, the third prong – “regarded as” – may apply to individuals even if they never have had a disability. If an employer mistakenly believes that the employee (or applicant) is disabled and cannot perform the job, the employer may be liable for a violation of the ADA.
The ADA essentially imposes 2 sets of duties on an employer, one positive and one negative. The positive obligation is a requirement that covered employers make a reasonable accommodation to the known disability of an applicant or employee, as long as it does not impose an undue hardship on the employer. For example, a deaf applicant may need a sign language interpreter during the job interview; or a blind employee may need someone to read information posted on a bulletin board. Although the obligation to provide the accommodation falls on the employer, the employee bears an equally important obligation – a disabled employee must request the accommodation in order to be entitled to receive one. The employee does not need to use any magic language, or even identify the specific accommodation needed. Nevertheless, she must make it reasonably known to the employer that an accommodation of some sort is requested. Upon doing so, the employer must engage in an interactive process to identify an appropriate accommodation. It bears repeating that if the employee makes no request for accommodation, the employer generally has no obligation to provide one.
The negative obligation placed on a covered employer is to refrain from discriminating against a disabled individual with respect to the terms and conditions of his or her employment, and to refrain from retaliating against an individual for engaging in ADA-related activities. An employer is prohibited from discriminating in all parts of the employment process against a qualified individual on the basis of a disability, including job application procedures, hiring, promotion or discharge, employee compensation, job training, and all other terms, conditions, and privileges of employment.
An employer who violates the ADA may be held liable for all of the damages available in discrimination claims filed under Title VII, including back pay, compensatory damages, punitive damages, and attorneys’ fees. The employer also may be enjoined from committing further discriminatory practices, affirmatively enjoined to reinstate the employee, or ordered to take other equitable actions.
Schedule a Consultation With Experienced Maryland Employment Disability Attorneys
Both employers and employees must be familiar with the legal guidelines that the ADA has created for the American workplace. If you are an employer who needs assistance with understanding the ADA or with training supervisors how to comply with its requirements, or if you are an employee who believes you have experienced disability discrimination, call the Towson employment law firm of Luchansky Millman and speak with one of our Maryland employment lawyers. Bruce Luchansky and Judd Millman have more than 3 decades of combined legal experience providing sound guidance and strong representation to Maryland clients. Contact them at 410.522.1020, to discuss your legal issue or to schedule an appointment.